Steven C. Wilson, Petitioner-appellant, v. Harry L. Allsbrook, Jr., Respondent-appellee, 955 F.2d 43 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 955 F.2d 43 (4th Cir. 1992)

Submitted Feb. 3, 1992. Decided Feb. 13, 1992


Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh, No. CA-91-381-HC-F, James C. Fox, Chief District Judge.

Steven C. Wilson, appellant pro se.

Clarence Joe DelForge, III, Office of the Attorney General of North Carolina, Raleigh, N.C., for appellee.

E.D.N.C.

AFFIRMED.

Before WIDENER, HAMILTON and LUTTIG, Circuit Judges.

OPINION

PER CURIAM:


Steven C. Wilson appeals from the district court's order dismissing his petition for writ of habeas corpus, 28 U.S.C. § 2254 (1988), for failure to exhaust state court remedies. An involuntary dismissal upon nonjurisdictional grounds is presumed to be with prejudice. Fed. R. Civ. P. 41(b). Because dismissal with prejudice is inappropriate where the ground for dismissal is failure to exhaust remedies, we modify the district court's order to dismissal without prejudice. Our review of the record and the district court's opinion discloses that, with this exception, the appeal is without merit. Accordingly, we grant a certificate of probable cause to appeal and affirm on the reasoning of the district court, as modified. Wilson v. Allsbrook, No. CA-91-381-HC-F (E.D.N.C. Dec. 3, 1991). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED.